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1 GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
2 JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C.
3 4333 Park Terrace Dr. #100
Westlake Village, CA 91361
4 Telephone No.: (818) 865-0444
5 Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901
TRUJILLO, ) Honorable Nancy Fineman; Dept. 4
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)
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Plaintiffs, ) OPPOSITION TO PLAINTIFFS'
) NOTICE OF MOTION AND MOTION
vs. ) IN LIMINE NO. 2 TO EXCLUDE
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) TESTIMONY OR EVIDENCE OF ANY
) MITIGATION EFFORTS NOT
15
STEPHEN MAGEE, SAC AERO FLYING ) INVOLVING DEFENDANTS AND
16 CLUB, INC. and DOES 1 - 50, ) MITIGATION RESULTS
) Date: July 7-8, 2022
Defendants. ) Time: 9 :00 a.m.
17
) Dept.: 4
18 ) Complaint filed: April 17, 2018
) Trial Date: July 7-8, 2022
19
20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively,
21 "defendants") hereby submit their opposition to plaintiffs BRYAN and CINDY TRUJILLO's
22 (collectively, "plaintiffs") motion in limine No. 2 to exclude testimony or evidence of any mitigation
23 efforts not involving defendants and mitigation results.
24 I. PLAINTIFFS ATTEMPT TO EXCLUDE EVIDENCE OF ABATEMENT WHICH IS
25 AT THE CORE OF THE ELECTION OF REMEDIES DEFENSE
26 Plaintiffs' reference to "mitigation" means "remediation" in the context of this case.
27 Plaintiffs' motion to exclude "any testimony or evidence" of the remediation not involving
2g defendants and remediation results is effectively a motion to exclude evidence ofplaintiffs' election
-1-
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
Y MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 of the abatement remedy.
2 Remediation efforts and results not involving defendants go to the heart of the bifurcated
3 issue. Plaintiffs' acts and the remediation certification notice issued by San Mateo County, pursuant
4 to California Health and Safety Code section 101480 provide crucial context in examining this
5 matter. The importance of this evidence has been established since early 2021 at the outset of the
6 in limine hearings when the Court identified the central issue as whether the nuisance was permanent
7 or continuing. Defendants have contended remediation was an inseparable part of the nuisance issue,
8 showing a continuing nuisance, since Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087
9 holds "the crucial distinction between a permanent and continuing nuisance is whether the nuisance
10 may be discontinued or abated ... " (Id. at 1093.) Remediation is merely another way of saying
11 abatement. (Gehr Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 667, fn.
12 7.)
13 The election and pursuit of remediation by plaintiffs serves as a basis of defendants'
14 affirmative defenses. The Court's April 2022 tentative ruling, to which plaintiffs submitted, noted
15 plaintiffs had sufficient notice of defendants' contention that by seeking remediation plaintiffs were
16 estopped from claiming a permanent nuisance, or in other words, plaintiffs made an election of the
17 remedy of abatement of a continuing nuisance. It is undisputed that the election of remedies issue
18 is why the parties agreed to a bifurcated trial.
19 A motion in limine that lacks factual support is grounds to deny the motion. (Kelly v. New
20 West Fed. Sav. (1996) 49 cal.App.4th 659, 670.) '"Relevant evidence' means evidence, including
21 evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason
22 to prove or disprove any disputed fact that is of consequence to the determination of the action."
23 (Cal. Evid. Code,§ 210.) "The court in its discretion may exclude evidence if its probative value
24 is substantially outweighed by the probability that its admission will (a) necessitate undue
25 consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or
26 of misleading the jury." (Cal. Evid. Code, § 3 52.) Plaintiffs have failed to sufficiently identity facts
27 that support the showing of irrelevance, undue time consumption, or undue prejudice.
28 III
-2-
OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 Rather, in conclusory fashion, plaintiffs claim crucial components of the remediation are
2 irrelevant. Plaintiffs' request to allow some remediation evidence in, while excluding others lacks
3 logic. This would preclude establishing the context under which defendants agreed to become the
4 "responsible party," and not permit an examination under the totality of the circumstances. There
5 would also be no context as to why defendants entered into the Remedial Action Agreement, which
6 is plaintiffs' sole exhibit.
7 "A motion in limine may be inappropriate if the evidence is
insufficiently developed. I.e., sometimes it is difficult to predict what
8 a witness will say on the stand. Moreover, events at trial may change
the context in which the evidence is offered. Consequently, the court
9 cannot rule intelligently on the admissibility of undeterminable
evidence until it is actually offered at trial and the court is aware of
10 its relevance in context."
11 (Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence (The Rutter
12 Group 2021), pp. 4-79-80, '1!4:282.22.)
13 Plaintiffs' contention of what the defendants purportedly should know is irrelevant. The
14 issue here is whether plaintiffs made an election to abate the nuisance as opposed to claiming it was
15 permanent and could not be abated. The modem view is to treat election of remedies as a question
16 of estoppel. (13 Witkin, Sum. Of Cal. Law (11th Ed. 2017) Equity, §215(4).) A positive act may
17 constitute an election, serve as an estoppel, and preclude a plaintiff from a remedy. (Steiner v.
18 Rowley (1950) 35 Cal.2d 713, 720.) The issue is whether plaintiffs made an unequivocal and
19 knowledgeable election and whether defendants were harmed by plaintiffs' election, not defendants.
20 (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039-1040.) Accordingly, plaintiffs have not provide
21 sufficient support to exclude the highly relevant evidence of remediation.
22 Plaintiffs demanded starting in early December that the defendants be the "responsible party,"
23 and made that request to San Mateo County. While San Mateo County was approaching defendants
24 to be the "responsible party," plaintiffs were adamant about remediation to the extent they hired their
25 own environmental consultant to remove 83 tons of soil paid for by Nationwide who then sought the
26 money back from defendants. Defendant SAC AERO agreed to be the responsible party in February
27 2017 and thereafter all the remediation and assessment work was directly done by contractors hired
28 and paid by defendants.
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
NY MITIGATION EF1'0RTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 II. CONCLUSION
2 Based on the foregoing, the Court is respectfully requested to deny plaintiffs' motion in
3 limine No. 2 in its entirety.
4
5 DATED: July 1, 2022 MICHAELIS, MONTANARI & JOHNSON
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OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF
Y MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS
1 PROOF OF SERVICE
2 ST ATE OF CALIFORNIA )
) S.S.
3 COUNTY OF LOS ANGELES )
4 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake
5 Village, California 91361.
6 On July 1, 2022, I served the foregoing document described as OPPOSITION TO
PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE
7 TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING
DEFENDANTS AND MITIGATION RESULTS on the interested pa1ties in this action by placing
8 a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail
at Westlake Village, California, addressed as follows:
9
10 Michael S. Danko, Esq. Attorneys for Plaintiffs
Michael Smith, Esq.
11 Danko Meredith
333 Twin Dolphin Dr. #145
12 Redwood Shores, CA 94065
tel: (650) 453-3600; fax: (650) 394-8672
13 Email: mdanko@dankolaw .corn; msrnith@dankolaw.com
14 [] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California.
The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with firm's
15 practice of collection and processing correspondence for mailing. It is deposited with U.S . postal
service on that same day in the ordinary course of business. I am aware that on motion of party
16 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1
day after date of deposit for mailing in affidavit.
17
18 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to
be sent to the recipient noted above via electronic transfer (email) at the respective email addresses
19 indicated above because of the COVID-19 virus.
20 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office
located at Westlake Village, California. The envelope was mailed fully prepaid. I am "readily
21 familiar" with firm's practice of collection and processing correspondence for mailing with Federal
Express. It is deposited with the Westlake Village Federal Express service on that same day in the
22 ordinary course of business. I am aware that on motion of party served, service is presumed invalid
if cancellation date is more than I day after date of deposit for overnight mailing in affidavit.
23
24 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
25
26 Executed on July 1, 2022 at Westlake Village, California.
27 i1 ~ v:?at.
,..ffiirbara Haussm nn,
28 California Certified Legal Secretary
Preview
1 GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 2 JOHN H. MOON, State Bar No. 253811 MICHAELIS, MONTANARI & JOHNSON, P.C. 3 4333 Park Terrace Dr. #100 Westlake Village, CA 91361 4 Telephone No.: (818) 865-0444 5 Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 11 BRYAN TRUJILLO and CINDY ) Case No.: 18CIV01901 TRUJILLO, ) Honorable Nancy Fineman; Dept. 4 12 ) 13 Plaintiffs, ) OPPOSITION TO PLAINTIFFS' ) NOTICE OF MOTION AND MOTION vs. ) IN LIMINE NO. 2 TO EXCLUDE 14 ) TESTIMONY OR EVIDENCE OF ANY ) MITIGATION EFFORTS NOT 15 STEPHEN MAGEE, SAC AERO FLYING ) INVOLVING DEFENDANTS AND 16 CLUB, INC. and DOES 1 - 50, ) MITIGATION RESULTS ) Date: July 7-8, 2022 Defendants. ) Time: 9 :00 a.m. 17 ) Dept.: 4 18 ) Complaint filed: April 17, 2018 ) Trial Date: July 7-8, 2022 19 20 Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively, 21 "defendants") hereby submit their opposition to plaintiffs BRYAN and CINDY TRUJILLO's 22 (collectively, "plaintiffs") motion in limine No. 2 to exclude testimony or evidence of any mitigation 23 efforts not involving defendants and mitigation results. 24 I. PLAINTIFFS ATTEMPT TO EXCLUDE EVIDENCE OF ABATEMENT WHICH IS 25 AT THE CORE OF THE ELECTION OF REMEDIES DEFENSE 26 Plaintiffs' reference to "mitigation" means "remediation" in the context of this case. 27 Plaintiffs' motion to exclude "any testimony or evidence" of the remediation not involving 2g defendants and remediation results is effectively a motion to exclude evidence ofplaintiffs' election -1- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF Y MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 of the abatement remedy. 2 Remediation efforts and results not involving defendants go to the heart of the bifurcated 3 issue. Plaintiffs' acts and the remediation certification notice issued by San Mateo County, pursuant 4 to California Health and Safety Code section 101480 provide crucial context in examining this 5 matter. The importance of this evidence has been established since early 2021 at the outset of the 6 in limine hearings when the Court identified the central issue as whether the nuisance was permanent 7 or continuing. Defendants have contended remediation was an inseparable part of the nuisance issue, 8 showing a continuing nuisance, since Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087 9 holds "the crucial distinction between a permanent and continuing nuisance is whether the nuisance 10 may be discontinued or abated ... " (Id. at 1093.) Remediation is merely another way of saying 11 abatement. (Gehr Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 667, fn. 12 7.) 13 The election and pursuit of remediation by plaintiffs serves as a basis of defendants' 14 affirmative defenses. The Court's April 2022 tentative ruling, to which plaintiffs submitted, noted 15 plaintiffs had sufficient notice of defendants' contention that by seeking remediation plaintiffs were 16 estopped from claiming a permanent nuisance, or in other words, plaintiffs made an election of the 17 remedy of abatement of a continuing nuisance. It is undisputed that the election of remedies issue 18 is why the parties agreed to a bifurcated trial. 19 A motion in limine that lacks factual support is grounds to deny the motion. (Kelly v. New 20 West Fed. Sav. (1996) 49 cal.App.4th 659, 670.) '"Relevant evidence' means evidence, including 21 evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason 22 to prove or disprove any disputed fact that is of consequence to the determination of the action." 23 (Cal. Evid. Code,§ 210.) "The court in its discretion may exclude evidence if its probative value 24 is substantially outweighed by the probability that its admission will (a) necessitate undue 25 consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or 26 of misleading the jury." (Cal. Evid. Code, § 3 52.) Plaintiffs have failed to sufficiently identity facts 27 that support the showing of irrelevance, undue time consumption, or undue prejudice. 28 III -2- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 Rather, in conclusory fashion, plaintiffs claim crucial components of the remediation are 2 irrelevant. Plaintiffs' request to allow some remediation evidence in, while excluding others lacks 3 logic. This would preclude establishing the context under which defendants agreed to become the 4 "responsible party," and not permit an examination under the totality of the circumstances. There 5 would also be no context as to why defendants entered into the Remedial Action Agreement, which 6 is plaintiffs' sole exhibit. 7 "A motion in limine may be inappropriate if the evidence is insufficiently developed. I.e., sometimes it is difficult to predict what 8 a witness will say on the stand. Moreover, events at trial may change the context in which the evidence is offered. Consequently, the court 9 cannot rule intelligently on the admissibility of undeterminable evidence until it is actually offered at trial and the court is aware of 10 its relevance in context." 11 (Wegner, Fairbank, Epstein & Chernow, Cal. Prac. Guide: Civil Trials & Evidence (The Rutter 12 Group 2021), pp. 4-79-80, '1!4:282.22.) 13 Plaintiffs' contention of what the defendants purportedly should know is irrelevant. The 14 issue here is whether plaintiffs made an election to abate the nuisance as opposed to claiming it was 15 permanent and could not be abated. The modem view is to treat election of remedies as a question 16 of estoppel. (13 Witkin, Sum. Of Cal. Law (11th Ed. 2017) Equity, §215(4).) A positive act may 17 constitute an election, serve as an estoppel, and preclude a plaintiff from a remedy. (Steiner v. 18 Rowley (1950) 35 Cal.2d 713, 720.) The issue is whether plaintiffs made an unequivocal and 19 knowledgeable election and whether defendants were harmed by plaintiffs' election, not defendants. 20 (Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039-1040.) Accordingly, plaintiffs have not provide 21 sufficient support to exclude the highly relevant evidence of remediation. 22 Plaintiffs demanded starting in early December that the defendants be the "responsible party," 23 and made that request to San Mateo County. While San Mateo County was approaching defendants 24 to be the "responsible party," plaintiffs were adamant about remediation to the extent they hired their 25 own environmental consultant to remove 83 tons of soil paid for by Nationwide who then sought the 26 money back from defendants. Defendant SAC AERO agreed to be the responsible party in February 27 2017 and thereafter all the remediation and assessment work was directly done by contractors hired 28 and paid by defendants. -3- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF NY MITIGATION EF1'0RTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 II. CONCLUSION 2 Based on the foregoing, the Court is respectfully requested to deny plaintiffs' motion in 3 limine No. 2 in its entirety. 4 5 DATED: July 1, 2022 MICHAELIS, MONTANARI & JOHNSON 6 7 8 9 10 N:\17517\pld\trial\MIL -oppositions\p-opp.1nil.eq.es.2. wpd 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- OPPOSITION TO PLAINTIFFS' MOTION IN LIMINE NO. 2 TO EXCLUDE TESTIMONY OR EVIDENCE OF Y MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS 1 PROOF OF SERVICE 2 ST ATE OF CALIFORNIA ) ) S.S. 3 COUNTY OF LOS ANGELES ) 4 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 4333 Park Terrace Dr. #100, Westlake 5 Village, California 91361. 6 On July 1, 2022, I served the foregoing document described as OPPOSITION TO PLAINTIFFS' NOTICE OF MOTION AND MOTION IN LIM/NE NO. 2 TO EXCLUDE 7 TESTIMONY OR EVIDENCE OF ANY MITIGATION EFFORTS NOT INVOLVING DEFENDANTS AND MITIGATION RESULTS on the interested pa1ties in this action by placing 8 a true copy thereof in a sealed envelope with postage thereon fully prepaid in the United States mail at Westlake Village, California, addressed as follows: 9 10 Michael S. Danko, Esq. Attorneys for Plaintiffs Michael Smith, Esq. 11 Danko Meredith 333 Twin Dolphin Dr. #145 12 Redwood Shores, CA 94065 tel: (650) 453-3600; fax: (650) 394-8672 13 Email: mdanko@dankolaw .corn; msrnith@dankolaw.com 14 [] (MAIL) I deposited such envelope addressed in the mail at Westlake Village, California. The envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with firm's 15 practice of collection and processing correspondence for mailing. It is deposited with U.S . postal service on that same day in the ordinary course of business. I am aware that on motion of party 16 served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. 17 18 [X] (ELECTRONIC TRANSFER) I caused all of the pages of the above-entitled document to be sent to the recipient noted above via electronic transfer (email) at the respective email addresses 19 indicated above because of the COVID-19 virus. 20 [] (FEDERAL EXPRESS) I deposited such envelope addressed at the Federal Express office located at Westlake Village, California. The envelope was mailed fully prepaid. I am "readily 21 familiar" with firm's practice of collection and processing correspondence for mailing with Federal Express. It is deposited with the Westlake Village Federal Express service on that same day in the 22 ordinary course of business. I am aware that on motion of party served, service is presumed invalid if cancellation date is more than I day after date of deposit for overnight mailing in affidavit. 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 25 26 Executed on July 1, 2022 at Westlake Village, California. 27 i1 ~ v:?at. ,..ffiirbara Haussm nn, 28 California Certified Legal Secretary